1. This transfer application has been moved by the applicants, wherein a prayer has been made that Suit No.786 of 1989, which has been filed by the respondent against the applicants and is pending disposal in Banking Court No.1/4 of Karachi may be recalled to this Court to proceed alongwith Suit No. 1019 of 1989 filed by the applicants against the respondent.
2. I have heard the arguments of the learned counsel for the parties and have also perused the material on record especially the plaints of Suit No.798 of 1989 and Suit No. 1019 of 1989.
3. Suit No.798 of 1989 has been filed by the respondent against the applicants, wherein the following prayers have been made:--
(a) For judgment and decree against defendants jointly and severally in the sum of Rs.11,927,191.57 with interest at 4% per annum over the bank rate with a minimum of 14 % per annum with quarterly rests from 1-6-1989 till payment; (b)for a preliminary decree under Order 34, Rule 4, C.P.C. In Form 5-A, Appendix 'D' to the First Schedule thereto in respect of the mortgaged property described in paras. 3, 6 and 8 above for the aforesaid amount together with interest at the above rate; (c)for a final decree for sale of mortgaged property are insufficient to satisfy the plaintiff's claim under the decree, for a personal money decree against decree defendants for the balance amount; (d)for costs of the suit and for such further and other reliefs as the Court may in the circumstances of the case deem fit and proper.
4. Suit No. 1019 of 1989 has been filed by the applicants against the respondent, wherein they have sought the following reliefs:-- (a)declaration that the properties bearing:-- (i)Plot No.48, G.K. 3, Ghulam Hussain Quarters, Kharadar, Karachi.
5. (ii)Plot No.3, O.T.8, Old Town Quarters, Kharadar, Karachi.
6. (iii)Plot No. 10 O.T. 8, Old Town Quarters, Kharadar, Karachi.
7. (iv)Plot No.41, Timber Pond, Keamari, Karachi.
8. (v)Bungalow No.28-B, New Queens Road, Karachi. are free from and not subject to mortgage or encumbrance or claim of defendant Bank:-- (b)order for return of their deeds of the title and their documents lying or being with the defendant Bank; (c)cancellation of Memorandum of Deposit of Title Deeds dated 22-11-1989 in respect of the properties shown therein being No. l(i), (ii) and (iii) in clause (a) above; (d)specific performance of the agreement directing the defendant to provide loan of Rs.4,500,000 against security of documents of title of their Fishmeal Factory of Plots 3C and 4C Ibrahim Hydri; (e)and in the alterative for cancellation of memorandum of Deposit and for return of their documents lying or being in custody of the defendant Bank and injunction restraining the defendant Bank from retaining them in their possession; (f)compensation and damages in sum of Rs.55,619,622 (Rupees Fifty Five Million Six Hundred and Nineteen Thousands Six Hundred Twenty Two) till date of suit and further loss as the Hon'ble Court may assess and award; (g)interest/marks-up/profit/again on sum adjusted at 20% per annum from date of suit till payment; (h)costs of the suit; (i)Such further and or other relief as the nature and or circumstances of the case may require.
9. From perusal of the contents of the plaints in the two suits as well as the prayers sought in the aforesaid two suits it is to be observed that one of the prayers sought in Suit No.1019 of 1989 by the applicants is that the properties which are the subject-matter of Suit No.789 of 1989 and have been claimed by the respondent to have been mortgaged/pledged/encumbered in their favour be declared to be free form such mortgage/pledge/encumbrance of any claim of the respondent bank. The other important prayers are that the title deeds of such properties in possession of respondent bank be returned to the applicant; and further that the memorandum of deposit of title deeds in respect of the aforesaid property be cancelled.
10. From the above, it is absolutely clear that the dispute involved in both the suits is with regard to the finance facility granted by respondent bank to the applicants; its subsequent non-payment as claimed by the respondent and its non-utilisation on account of certain illegal objections raised by respondent bank as claimed by the applicants. The claim of the respondent bank is with regard to the recovery of the finance facility granted by them to the applicants and utilised by them whereas the applicants in addition to the prayers at clauses (a) to (e) of the prayer clause have also sought damages against the respondent for their failure to allow proper utilisation of the finance facilities.
11. In the circumstances, it is to be observed that the issues and the dispute involved in the aforesaid two suits relate to the finance facility granted by respondent bank in favour of the applicants, the payment of which was got secured by mortgage/pledge/encumbrance of the properties of the applicants. The respondent bank claims that the finance facility was utilised in full by the applicants but they failed to adjust the same as a result of which the respondent bank filed a suit for recovery of the outstanding amount of loan by sale of the mortgage-properties whereas the case of the applicants is that they were not allowed to utilise the finance facility in full as a result of which they suffered monetary loss as well as loss of reputation and goodwill for which they have claimed damages and also sought declaration that the properties in dispute were got illegally mortgage/pledge/encumbered.
12. The subject-matter, the issues and disputes in both the suits being similar and common, it will be proper that both these suits proceed in one and the same Court so as to avoid the possibility of conflicting decisions.
13. Accordingly, this transfer application is allowed and Suit No.798 of 1989 filed by the respondent bank against the applicants which is pending disposal in Banking Court No.1/4. Karachi is ordered to be transferred to this` Court for proceedings and disposal alongwith Suit No. 1019 of 1989.
14. H. B. T. /A-169/K